Primary ideas of constitutional law :
To have a complete idea of constitutional law one should have a basic knowledge of other general laws in a country. All existing laws of a country may be, for the convenience of study and research, classified into two categories: Public Law and Private Law.
Table of Contents
Primary ideas of constitutional law :
Public law determines and regulates the organization and functioning of the state and determines the relationship of the state with its subjects. The test of public law depends upon the nature of the parties in the relationship in question; if one of the parties is the state, the relationship belongs to public law. Thus constitutional law, criminal law, administrative law etc. are the forms of public law. Public law has many branches such as Constitutional law, Administrative law, Criminal law, Tax law, etc.
For the purpose of this chapter, it will be convenient to discuss only two important divisions of public law constitutional law and administrative law.
Constitutional law actually forms the backbone of public law. It is that branch of public law which determines the nature of the state, nature and structure of the government-its powers, functions, division of powers among different constitutional organs, their relationship to each other and above all the relationship between the state and the individuals.
From a broader point of view, administrative law is a part of constitutional law. The difference between the two is really one of practical convenience only. Administrative law is that branch of public law which deals with how the administration is controlled and made accountable. It determines the powers and duties of administrative authorities, the procedure followed by them in exercising their powers and discharging the duties and the remedies available to an aggrieved person when his rights are affected by an action on the part of such authorities.
It is one of the common features of the continental legal systems! that they maintain a distinction between constitutional law and administrative law. Common law legal systems, from the view point of their inherent traits, do not maintain this distinction. But in recent time there has been a growing tendency to draw a distinction between constitutional law and administrative law.
Though the distinction between constitutional law and administrative law is on marginal point, for better understanding of constitutional law a student must keep in mind this marginal distinction. While the constitutional deals with basic principles outlining the structure, powers and functions of the principal component organs of the government e.g. the executive, legislative and judiciary and other constitutional bodies like the Election Commission, public Service Commission, Comptroller and Auditor General etc., the administrative law deals in detail with the residual powers and functions of the administrative authorities of various departments of the government.
For example, how the composition of the Executive, Legislative and Judiciary would be, what would be their nature, what basic functions they would discharge -all these are subject matters of constitutional law. But the residue powers and functions of all officials of these departments, their duties, their control, their salaries, office agenda, settlement of disputes-etc. are the subject matter of administrative law. According to Maitland,² while constitutional law deals with structure and the broader rules which regulate the functions, the details of the functions are left to administrative law.
Private law is that branch of law which determines and governs the relations of citizens with each other. In the domain of private law parties are private individuals and the state, taking the position of an arbitrator, through its judicial organ adjudicates the matters in dispute between them. Law of contracts, torts, of property etc. are examples of private law.
Substantive Law and Procedural Law
Both public and private law may be substantive law or procedural law. When a particular law defines rights or crimes or any status, it is called substantive law. For example, penal law, law of contract, law of property etc. are substantive laws. When a particular law determines the remedies or outlines the procedures of litigation, it is called procedural law e.g. Civil Procedure Code, Criminal Procedure Code etc. The distinction between the substantive and procedural law is not an easy and clear-cut one. The same law may be procedural as well as substantive.
Nature of Constitutional Law
The above discussion of different national laws may give an impression to the readers that constitutional law has got the same status as other laws; it is not in any way superior any other law. This is the fact in countries where the constitution is an unwritten one. Where the constitution is unwritten and flexible there cannot be any distinction between fundamental law and ordinary law.
In Britain parliament being the supreme law making body and the constitution being unwritten and flexible, parliament can amend any constitutional law by ordinary law making procedure and hence constitutional law exists on the same footing with other laws of an ordinary nature.
On the other hand, where the constitution is written and rigid, the constitutional law has a different nature. Here the constitution is considered the supreme or fundamental law of the land.
It is supreme law in the sense that on point of status it is placed above all the laws: no law is above the constitution; and all ordinary laws get their validity and force from the constitution; no law can be inconsistent with the constitutional law. According Gettel “Constitutional law locales sovereignty within the state and thus indicates the source of law.”2 And this is why constitutional law is considered the touch stone or yard-stick to test the validity of all other laws, be it public or private, substantive or procedural.
Thus if the constitutional law is considered the supreme law of the land, then all laws of a particular country may be classified into two broad categories;
A. Constitutional or Fundamental Law; and
B. Ordinary Law.
All administrative, substantive and procedural laws come under the category of ordinary law. All laws except constitutional law are called ordinary law because they can be made and amended by the ordinary law-making procedure. And secondly, no provision of these laws can be inconsistent with the constitutional law. Constitutional law is considered of special sanctity. It is alterable not by any ordinary procedure but by a difficult procedure like two-thirds majority, three fourths majority etc.
Definition of Constitution
State is a political organization which is administered by a group of persons known as the government. When we say the government of a state, it means basically the executive, the legislative and the judiciary. But this government cannot run the state according to their whim and caprice. There has to be certain rules and principles on the basis and under the authority of which the government can run the state.
This set of principles is called the Constitution. A Constitution. is called the governing wheel of the state, for without it anarchy would result in the administration of the state. Thomas Paine rightly remarks-“Government without a Constitution is a power without a right.” A modern state, therefore, cannot be thought of without a Constitution, be it written or unwritten.
But how have the writers defined the term constitution? Like many other terms in political science, the term “constitution” has been variously defined by different writers according to the varying conceptions which they hold as to what a Constitution should be.
Aristotle defines a Constitution as “the way of life the state has chosen for itself”. Such a definition is very ancient and no clear characteristics of a Constitution can be found in it.
According to C.F. Strong-“A Constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed and the relation between the two are adjusted.” Strong’s definition is more or less a defectless one.
According to Lord Bryce-“Constitution is the aggregate of laws and customs under which the life of the state goes on”. This definition by Bryce is a narrower one. Because being influenced by the constitutional system of Britain Bryce has defined Constitution as an aggregate of customs. But it is the fact that except Britain and New Zealand nowhere in the world a Constitution can be found which can be said to be an aggregate of customs.
Some writers have defined Constitution in wider sense. Among them K.C. Wheare, Hood Phillips and Gilchrist are mostly referred. According to them the term “Constitution” is used to denote all written and unwritten principles regulating the administration of the state.
Again, some have defined Constitution in narrower sense. Among them are Thomas Paine and De Tocqueville. According to them Constitution means the aggregate of only those written principles which regulate the administration of the state. According to them if the Constitution cannot be produced in a visible document, it cannot. be said to be a Constitution at all.2
This second group of writers has been found to be wrong. This is because in true sense, Constitution is a body of rules written or unwritten which determine the organization of the state, the distribution of powers within the principal organs of the government and the relation between the government and governed.
British Constitution is unwritten but many important parts of it are written e.g. Magna Carta, Bill of Rights, Petition of Rights etc. Similarly though the US Constitution is written, some important governmental matters are unwritten. For example, cabinet system, political party, committee system of the Congress etc. important elements of the US constitutional system are unwritten.
Classification of Constitution
Constitutions are widely classified into two categories. firstly written and unwritten; and secondly, rigid and flexible.
Written and Unwritten Constitution
A written constitution is one in which the fundamental principles concerning state administration are embodied and which has, as a specific document, been passed by a specific body. So a written constitution can be produced and shown as a single document. The US Constitution, Indian Constitution, Bangladesh Constitution provide examples of written Constitution.
On the other hand, where the constitution has not been passed formally as a specific document by a specific body and the fundamental principles concerning state administration exist in political customs, judicial decisions and in some scattered documents, the constitution is an unwritten one. The British Constitution provides the glaring example of unwritten constitution.
Views, of course, are expressed by different writers that this classification of Constitution (written and unwritten) is not a scientific one since no Constitution can, in practice, be fully written or unwritten. An unwritten Constitution must have some written elements. Likewise, a written Constitution cannot be fully written; some elements of it exist in unwritten form.
For example, British Constitution is unwritten but some important elements of it are contained in written documents like Magna Carta, Bill of Rights, Petition of Rights, Act of Settlement etc. On the other hand, the US Constitution is written but some important constitutional subjects like political party organization, cabinet, committee of the Congress, working procedure of the Congress etc. are not written; they are largely based on political custom or convention.
Likewise Bangladesh Constitution is a written one but political party organization, appointment of Chief Justice, formation of coalition government etc. are not written; these are based on convention. This is why it is said that the distinction between written and unwritten Constitution is one of degree rather than of form. C.F. Strong comments that a classification of Constitutions on the basis of whether they are written or unwritten is illusory.
It is, of course, sometimes necessary to distinguish between the so-called written and so-called unwritten Constitution, and, whenever we need to do so, we shall refer to the former as a documentary and to the latter as a non-documentary Constitution.
Rigid and Flexible Constitution
The distinction between a flexible and rigid Constitution rests upon the method by which the Constitution may be changed. The Constitution which can be amended by ordinary law making procedure is called a flexible Constitution. Ordinary law-making procedure means making law by simple majority which is possible by a majority of the votes of the members present and voting.
All ordinary laws (Acts of Parliament) of the country are passed by this process. For example, British Constitution is flexible. This is because there is no distinction between ordinary and constitutional law in Britain. The British Parliament is supreme and it can enact or amend any law, be it ordinary or constitutional in nature, by ordinary law-making procedure and it never needs to adopt any special procedure.
On the other hand, the Constitution which cannot be amended by ordinary law-making procedure but a special procedure (like two thirds or three-fourths majority) is needed, it is called a rigid Constitution. A rigid Constitution is considered the supreme law and regarded as a sacred document. The parliament cannot amend it going beyond the Constitutional limitation; nor can it make any law contrary to the Constitution.
This is why where there is a rigid Constitution, there exists a clear distinction between constitutional law and ordinary law. Constitutional law can be amended only by a special or difficult procedure whereas ordinary law can be made and amended by the ordinary law-making procedure. So in the case of rigid Constitution Constitutional law stands over and above ordinary laws and no ordinary law can be inconsistent with Constitutional law.
To quote C.F. Strong ‘there are four methods of the constitutional amendment in use among states with rigid constitutions; firstly, that by the legislature under special restrictions; secondly, that by the people through a referendum; thirdly, that method peculiar to federal states where all or a proportion of, the federating units must agree to the change; and fourthly, that by a special convention for the purpose’.!
For example, the US Constitution is rigid one. The amendment procedure the US Constitution complicated one. There are two modes amendment for the Constitution. The usual and mostly method is- two-thirds the Houses the Congress (the Senate the House Representatives collectively called the Congress) can propose amendments to Constitution and this proposed amendment consented by legislatures at least three fourths states, the amendment becomes effective. most difficult is following:
legislatures the two-thirds states may petition the Congress call a convention propose amendments to Constitution. When request legislatures, Congress calls National Convention. This Convention passes resolution the amendment the Constitution. this resolution ratified or consented by convention three fourths states, the amendment becomes effective.
Likewise the Constitution Bangladesh rigid one. Under the provisions the Constitution of Bangladesh normally two-thirds majority the effective. Again, the proposed amendment contains any provision articles 56 or 142, referendum essential even such amendment bill has passed in the parliament by two-thirds majority. U 100 owned noironitzib sio zahs ansiti
It has, of course, be taken into account that an unwritten Constitution practice flexible but written Constitution not necessarily rigid; it may sometimes be flexible practice though its it be rigid. The Constitution of New Zealand written of any importance there are only which Constitution is flexible and these states New probably the only state which Constitution is written but flexib.
While discussing Constitutional law in this book I would, off and on, refer to the US Constitution and British Constitution since these two Constitutions in the world are most ancient and developed. Now the smallest Constitution in the world is that of United States which was adopted in 1787 and was given effective in 1789. It had only 7 Articles initially. Within 204 years 26 amendments were passed and 20 new Articles have been added. So now the total Articles are 33 in the US Constitution. The largest Constitution in the world is Indian constitution which was adopted in 1949 and became effective in 1950. It had originally 395 Articles and 12 Schedules.
Constitution and Constitutional Law
Is there any difference between the Constitution and Constitutional law? Like the term ‘Constitution’ it seems that the term ‘Constitutional law’ may be used in two senses – Constitutional law in the strict sense and Constitutional law in a general sense. When the term is used in the strict sense, it means those provisions of the Constitution which are enforceable by the court of law since law as such in a positive sense means those rules which are enforceable in a court of law.
In this sense preamble to the Constitution, fundamental principles of state policy etc. are not Constitutional law since the court cannot enforce them although they are an inseparable part of a written Constitution. For the same reason, none of the non-legal rules or conventions grown out of Constitutional necessity (in the case of a written Constitution) is part of Constitutional law.
On the other hand, when the term Constitutional law’ is used in the general sense, it includes all the provisions of the Constitution, be they are enforceable in the court or not, plus all other non-legal rules or conventions. Thus when the term ‘Constitutional law is used in a strict sense Constitutional law is less than the Constitution itself and when the is used in the general sense, it is more than the Constitution itself.